Frequently Asked Questions
The Tobacco Product Directive (TPD) is an EU directive that regulates tobacco products, novel tobacco products, and vaping products. All EU member states observe this directive, although some have bespoke enforcement arrangements. The Tobacco and Related Products Regulations (TRPR) transfer the TPD into UK law.
The TPD and TRPR enforce a range of standards which impact the vaping industry. These include limits to the size of liquid bottles and tanks, mandatory product notification and health warnings featured on packaging.
Some elements of these sets of regulations have generated counter-productive, unintended consequences. For example, the 20m/g nicotine strength limit means heavy smokers may not be able to switch to much less harmful vaping products. Likewise, the 10m bottle size limit inconveniences potential switchers and increases waste volume.
The EU has begun a review of the TPD. Now the UK has left the EU, it has a range of options on how to proceed. The Government may continue to observe the current directive, it may update it with aspects of the latest EU directive, or it may diverge from this completely. It can do this through the TRPR. The Department of Health and Social Care has an obligation to review the TRPR by May 2021.
As an Association, the UKVIA fully supports evidence-based regulation that is proportionate and properly sets vaping products apart from tobacco. There are definitely some positive aspects to the TPD and TRPR; they have helped ensure high product standards across the industry and reinforced consumer confidence in some respects. However, there remain a number of negative, disproportionate aspects to the regulations.
The UKVIA welcomes the reviews of the TPD and TRPR, and will be feeding into the review processes to ensure meaningful industry involvement can inform the regulations to keep the vaping industry safe and successful.
Article 5.3 of the World Health Organization’s ‘Framework Convention on Tobacco Control’ (FCTC) is part of an international treaty dealing with the involvement of the tobacco industry in setting tobacco policy. It effectively means that the Government should not engage with the tobacco industry when setting tobacco policy; and where it does this engagement should be transparent and public.
This guidance is sometimes used by public health groups and Government as an excuse not to engage with the UKVIA (or individual companies) on vaping policy. The UKVIA believes that as we do not engage in tobacco specific policy at all, and only advocate on vaping policy (explicitly excluding other ‘novel tobacco’ products such as heat not burn) that 5.3 should not apply to our engagement.
Furthermore, Public Health England policy interpretation of 5.3 cites ‘majority’ tobacco run/owned organisations, which the UKVIA is not – as tobacco members make up a small minority of the membership. We believe that precluding effective industry engagement with government and other public health bodies only serves to worsen the development of vaping policy more widely.
Shortfills are zero-nicotine flavoured e-liquids which are subsequently combined with nicotine. The nicotine added can be flavoured or unflavoured. As shortfills do not contain nicotine themselves, they are not covered under the TPD directive. They therefore avoid the stringent levels of regulatory requirement required of traditional, nicotine-containing e-liquids.
As a result of this loophole, the UKVIA is concerned that some shortfills on the market may contain unsafe or untested levels of ingredients, or which contain ingredients prohibited entirely. The Medicines and Healthcare Products Regulatory Agency (MHRA) has no powers to incorporate zero-nicotine containing liquids into their notification process.
The UKVIA has previously pursued several avenues of Government engagement relating to shortfills on behalf of our members. Despite this, action has been limited. The impact and potential negative consequences of shortfills must be considered as a priority when UK vaping regulation is reviewed.
The UKVIA believes that vaping should never be subject to the same tax regime as smoking, as vaping does not utilise tobacco. Any additional cost impediment to the purchase of vaping products risk disincentivising smokers from exploring harm reduction alternatives.
In August 2018, we successfully lobbied the Treasury to abandon plans for a vaping tax in the UK, which could have cost consumers tens of millions of pounds a year and driven down sales.
The Commons Science and Technology Committee confirmed their backing for special consideration on taxing vaping products that same month:
“The level of taxation on smoking-related products should directly correspond to the health risks that they present, to encourage less harmful consumption. Applying that logic, e-cigarettes should remain the least-taxed and conventional cigarettes the most, with heat-not-burn products falling between the two.”
However, vaping continues to attract a full rate of VAT at 20%. This is a marked contrast to NRT products, which attract a 5% rate. The UKVIA continues to press the case for reductions in tax on vaping products, to ensure that their potential for improvement in public health is realised.
As recently as June 2020, we have written to the Chancellor of the Exchequer to ask that vaping is also considered for this reduced rate of VAT.
E-Cigarette/Vaping Associated Lung Injury (EVALI) became prominent in the media after a spate of cases in the US. Often associated with breathing and lung conditions, hospitalisation and fatalities were attributed to EVALI in all states across America. In September 2019, US President Donald Trump made a statement on vaping, interpreted by many as signalling the beginning of a legislative and regulatory clamp down on the sector in the US.
Subsequent analysis revealed that almost all cases of EVALI involved the use of THC oils and black-market products. These liquids are illegal in the UK, where standards are incomparably higher.
The US Centre for Disease Control and Prevention (CDC) has confirmed that the prime cause of the injuries and fatalities from EVALI was the use of vitamin E acetate as a thickening agent. In January 2020 Dr Brian King, Chief Science Officer at the CDC, said:
“Recommendations were refined to reflect the best available scientific evidence and to best protect public health…The available science shows that Vitamin E acetate is strongly linked (to the reported illnesses)”
Again, this practise is illegal in UK vaping products. Public Health England has rightly drawn a distinction between the situation in the USA and the UK; as in the UK there is a rigorously regulated market overseen by the MHRA, which monitors banned ingredients.
While vaping products are currently required to be part of the MHRA notification scheme, they are not supplied by the NHS or GPs to patients on prescription. There is a clear harm reduction benefit from vaping devices to smokers, but the UKVIA and others do not feel that medical licensing is necessarily the most effective route to delivering this.
The success of the UK vaping sector is due in part to its reputation as the provider of an innovative consumer product, rather than a traditional medicine. Vapers often report unease at being categorised as a patient, or in some other way receiving formal medical treatment.
The actual process of full medical licencing would also require considerable investments of time and money, which would likely strain those supplying the industry. Furthermore, the length of clinical trials would leave the industry ill-placed to react to changing consumer demands.
While the UKVIA continues to engage with regulators and other bodies on these issues, we do not envisage the pursuit of medically licencing vaping products as being beneficial for smokers.
It doesn’t matter whether the product was sold to an underage person unknowingly, as an offence with strict liability, enforcers need only identify a breach in the law. The owner of the business, as well as the member of staff who sold the product, can both be held responsible for the offence. The penalty can include a fine of up to £2,500 and the removal of your license. Retailers must prove that they have taken all reasonable precautions and exercised all due diligence in preventing underage sales.
A proxy sale is where an adult buys, or attempts to buy, tobacco, cigarette papers or a nicotine vapour product on behalf of someone under the age of 18.
Passport, Photo Driving License, a Proof of Age Standard Scheme (PASS), Military ID or Foreign ID.
No – so long as you can prove that you have verified age during the order process, you will not need to verify age upon delivery. However, retailers must implement at least one method of age verification and you might find that verification at the point of delivery suits your business model.
No – the process of verifying age online must involve the presentation of some form of identification, which is checked against an official database.
A refusals register is a record kept for every time you refuse a sale, where the customer has failed to present valid identification, or is under suspicion of performing a proxy sale. The register should record: date and time of refusal; the name of the staff member who refused the sale; and the reason for refusals.
Yes, the UKVIA and Trading Standards have jointly published a guide to preventing under age sales in store and online. A copy of the guide can be downloaded here.
UKVIA members are a good source of knowledge and can share their experiences.